S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5788
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 23, 2023
                                ___________
 
 Introduced by M. of A. SLATER -- read once and referred to the Committee
   on Labor
 
 AN  ACT  to  amend  the  workers'  compensation  law, in relation to the
   continuation of death benefits to a  surviving  spouse  regardless  of
   remarriage
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivisions 1-b, 1-c, 1-d, 2, 2-a and 2-b of section 16 of
 the workers' compensation law, subdivisions 1-b, 1-c and 2 as amended by
 chapter 168 of the laws of 1979, subdivisions 1-d and 2-b  as  added  by
 chapter 689 of the laws of 2007, and subdivision 2-a as amended by chap-
 ter  174  of  the laws of 1981, are amended and a new subdivision 2-c is
 added to read as follows:
   1-b. If there be a surviving spouse and no child of the deceased under
 the age of eighteen years and no child of any  age  dependent  blind  or
 physically  disabled, and the death occurs on or after July first, nine-
 teen hundred forty-eight, and prior to January first,  nineteen  hundred
 seventy-eight,  to  such spouse forty per centum of the average wages of
 the deceased [during widowhood or widowerhood with  two  years'  compen-
 sation  in one sum, upon remarriage]; and where the death occurred prior
 to July first, nineteen hundred forty-eight, to such wife (or  dependent
 husband) thirty per centum of such wages [during widowhood (or dependent
 widowerhood) with two years' compensation in one sum, upon remarriage].
   1-c. If there be a surviving spouse and no child of the deceased under
 the  age  of  eighteen  years  or under the age of twenty-three years if
 enrolled and attending as a full time student in  an  accredited  educa-
 tional  institution  and  such  enrollment  and  full time attendance is
 certified by such institution and no child of any age dependent blind or
 physically disabled, and the death occurs on  or  after  January  first,
 nineteen  hundred seventy-eight, to such spouse sixty-six and two-thirds
 per centum of the average wages of the  deceased  [during  widowhood  or

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01441-01-3
              

 A. 5788                             2

 widowerhood  with two years' compensation, in one sum, upon remarriage].
 Where the death occurs on  or  after  January  first,  nineteen  hundred
 seventy-eight, and the spouse is receiving the survivors insurance bene-
 fits under the social security act, the death benefit payable under this
 section  shall be reduced in accordance with the provisions of table No.
 1 below by five per centum of  the  spouse's  share  of  the  survivor's
 insurance benefits under the social security act for each ten dollars of
 deceased's average weekly wage in excess of one hundred dollars provided
 that  in  no  case  shall such reduction exceed fifty per centum of said
 spouse's share of the survivors  insurance  benefits  under  the  social
 security act.
                                TABLE No. I
 
              Offset provisions applicable in death benefits
                  where there is a sole surviving spouse
 
 AVERAGE WEEKLY WAGE                               PERCENTAGE OF SPOUSE'S
                                                       SHARE OF SURVIVORS
                                                       INSURANCE BENEFITS
 
 over $100 up to and including $110 ................................... 5
 over $110 up to and including $120 .................................. 10
 over $120 up to and including $130 .................................. 15
 over $130 up to and including $140 .................................. 20
 over $140 up to and including $150 .................................. 25
 over $150 up to and including $160 .................................. 30
 over $160 up to and including $170 .................................. 35
 over $170 up to and including $180 .................................. 40
 over $180 up to and including $190 .................................. 45
 over $190 up to and including $200 .................................. 50
 over $200 ........................................................... 50
   1-d. If there be a surviving spouse of an employee of a private volun-
 tary  hospital killed in a World Trade Center rescue, who passed a phys-
 ical examination upon employment as  a  rescue  worker  that  failed  to
 reveal  evidence  of  a condition that was the proximate cause of death,
 and no child of the deceased under the age of eighteen years,  or  under
 the  age  of twenty-three years if enrolled and attending as a full-time
 student in an accredited educational institution and such enrollment and
 full-time attendance is certified by such institution, and no  child  of
 any  age dependent blind or physically disabled, to such spouse seventy-
 five per centum of the average wages of the deceased  [during  widowhood
 or  widowerhood,  with  two years' compensation, in one sum, upon remar-
 riage]. Where such death occurs, and the spouse is receiving the  survi-
 vors insurance benefits under the social security act, the death benefit
 payable  under  this  section  shall  be  reduced in accordance with the
 provisions of table No. I in subdivision one-c of this section  by  five
 per  centum  of  the spouse's share of the survivor's insurance benefits
 under the social security act for each ten dollars of deceased's average
 weekly wage in excess of one hundred dollars; provided that in  no  case
 shall  such  reduction exceed fifty per centum of such spouse's share of
 the survivors insurance benefits under the social security act.
   2. If there be a surviving spouse and a surviving child or children of
 the deceased under the age of eighteen years or  a  surviving  child  or
 children  of  any  age  dependent  blind or physically disabled, and the
 death occurs on or after July first, nineteen hundred  forty-eight,  and
 prior  to  January first, nineteen hundred seventy-eight, to such spouse
 A. 5788                             3

 thirty per centum of the average wages of the deceased [during widowhood
 or widowerhood with two years' compensation  in  one  sum,  upon  remar-
 riage]; and the additional amount of twenty per centum of such wages for
 each  such child until the age of eighteen years or until the removal of
 the dependency of the blind or physically disabled child or children; in
 case of the subsequent death [or remarriage] of  such  surviving  spouse
 any surviving child of the deceased employee, at the time under eighteen
 years  of  age  or dependent through mental or physical infirmity, shall
 have his OR HER compensation increased to  thirty  per  centum  of  such
 wages, and the same shall be payable until he OR SHE shall reach the age
 of  eighteen  years or until such dependent blind or physically disabled
 condition shall have been removed; provided that the total amount  paya-
 ble  shall in no case exceed sixty-six and two-thirds per centum of such
 wages. Upon statutory termination of compensation payments to  all  such
 children, the compensation of the surviving spouse shall be increased to
 forty  per  centum  of such wages [with two years' compensation, at such
 rate, in one sum, upon remarriage].
   If there be a surviving wife (or dependent husband)  and  any  of  the
 aforementioned  surviving children, and the death occurred prior to July
 first, nineteen hundred forty-eight, to such wife (or dependent husband)
 thirty per centum of the average wages of the deceased [during widowhood
 (or dependent widowerhood) with two years' compensation in one sum, upon
 remarriage]; and the additional amount of ten per centum of  such  wages
 for  each such child until eighteen years of age or until the removal of
 the dependency of the blind or physically disabled child or children; in
 case of the subsequent death [or remarriage] of such surviving wife  (or
 dependent husband) any surviving child of the deceased shall have his OR
 HER  compensation increased to fifteen per centum of such wages until he
 OR SHE shall reach the age of eighteen years  or  until  such  dependent
 blind or physically disabled condition shall have been removed; provided
 that  the  total  amount  payable  shall in no case exceed sixty-six and
 two-thirds per centum of such wages.
   The board may in its discretion require the appointment of a  guardian
 for  the  purpose  of  receiving  the compensation of a minor child or a
 dependent blind or physically disabled child. In the absence of  such  a
 requirement by the board the appointment of a guardian for such purposes
 shall not be necessary.
   2-a.  If  there  be a surviving spouse and a surviving child under the
 age of eighteen years or under the age of twenty-three years if enrolled
 and attending as a full time student in an accredited educational insti-
 tution and such enrollment and full time attendance is certified by such
 institution or a surviving child of any age  dependent  blind  or  phys-
 ically disabled and the death occurs on or after January first, nineteen
 hundred  seventy-eight,  to  such  spouse  thirty-six and two-thirds per
 centum of the average wages of the deceased [during widowhood or  widow-
 erhood  with  two  years' compensation in one sum, upon remarriage]; and
 thirty per centum of such wages to such child under the age of  eighteen
 years  or  under the age of twenty-three years if enrolled and attending
 as a full time student in an accredited educational institution and such
 enrollment and full time attendance is certified by such institution  or
 a  surviving child of any age dependent blind or physically disabled; in
 the case of the subsequent death of such surviving spouse the  surviving
 child  shall  have  his  OR  HER compensation increased to sixty-six and
 two-thirds per centum of such wages and the same  shall  be  payable  so
 long as he OR SHE is under the age of eighteen years or under the age of
 twenty-three  years  if enrolled and attending as a full time student in
 A. 5788                             4
 
 an accredited educational institution and such enrollment and full  time
 attendance  is certified by such institution or a surviving child of any
 age dependent blind or physically disabled; upon  statutory  termination
 of compensation payable to such child, the compensation of the surviving
 spouse shall be increased to sixty-six and two-thirds per centum of such
 wages  [with  two  years'  compensation,  at such rate, in one sum, upon
 remarriage. Upon remarriage of  such  surviving  spouse,  the  surviving
 child  shall continue to receive thirty per centum of such wages]. Where
 the death occurs on or after January first,  nineteen  hundred  seventy-
 eight and the spouse is receiving survivors insurance benefits under the
 social  security act, the death benefit payable under this section shall
 be reduced by five per centum of the spouse's  share  of  the  survivors
 insurance benefits under the social security act for each ten dollars of
 deceased's average weekly wage in excess of one hundred dollars provided
 that  in  no  case  shall such reduction exceed fifty per centum of said
 spouse's share of the survivors  insurance  benefits  under  the  social
 security act as set forth in table No. I below.
 
                                TABLE No. I
 
              Offset provisions applicable in death benefits
              where there is a surviving spouse and one child
 
 AVERAGE WEEKLY WAGE                               PERCENTAGE OF SPOUSE'S
                                                       SHARE OF SURVIVORS
                                                       INSURANCE BENEFITS
 over $100 up to and including $110 ................................... 5
 over $110 up to and including $120 .................................. 10
 over $120 up to and including $130 .................................. 15
 over $130 up to and including $140 .................................. 20
 over $140 up to and including $150 .................................. 25
 over $150 up to and including $160 .................................. 30
 over $160 up to and including $170 .................................. 35
 over $170 up to and including $180 .................................. 40
 over $180 up to and including $190 .................................. 45
 over $190 up to and including $200 .................................. 50
 over $200 ........................................................... 50
   If  there  be  a  surviving  spouse and two or more surviving children
 under the age of eighteen years or under the age of  twenty-three  years
 if enrolled and attending as a full time student in an accredited educa-
 tional  institution  and  such  enrollment  and  full time attendance is
 certified by such institution or a surviving child or  children  of  any
 age  dependent  blind  or  physically  disabled and a death occurs on or
 after January first, nineteen  hundred  seventy-eight,  to  such  spouse
 thirty-six and two-thirds per centum of the average wage of the deceased
 [during widowhood or widowerhood with two years' compensation in one sum
 upon  remarriage];  and thirty per centum of such wages to such children
 under the age of eighteen years or under the age of  twenty-three  years
 if enrolled and attending as a full time student in an accredited educa-
 tional  institution  and  such  enrollment  and  full time attendance is
 certified by such institution or a surviving child or  children  of  any
 age  dependent  blind  or physically disabled, share and share alike; in
 case of the subsequent death of  such  surviving  spouse  the  surviving
 children  shall  have their compensation increased to sixty-six and two-
 thirds per centum of such wages and the aggregate sum shall be  payable,
 share  and  share  alike,  so long as they are under the age of eighteen
 A. 5788                             5
 
 years or under the age of twenty-three years if enrolled  and  attending
 as a full time student in an accredited educational institution and such
 enrollment  and full time attendance is certified by such institution or
 a  surviving  child or children of any age dependent blind or physically
 disabled. [Upon remarriage of such surviving spouse,  if  there  be  two
 surviving  children  each  shall  receive twenty-five per centum of such
 wages, and if there are surviving more than two children under  the  age
 of  eighteen  years  or  under  the  age of twenty-three if enrolled and
 attending as a full time student in an accredited  educational  institu-
 tion  and  such enrollment and full time attendance is certified by such
 institution or a surviving child or children of any age dependent  blind
 or physically disabled sixty-six and two-thirds per centum of such wages
 share and share alike.] Upon statutory termination of compensation paya-
 ble  to such children, the compensation of the surviving spouse shall be
 increased to sixty-six and two-thirds per centum of such wages [with two
 years' compensation, at such rate, in one sum, upon  remarriage].  Where
 the  death  occurs  on or after January first, nineteen hundred seventy-
 eight, and the spouse is receiving survivors  insurance  benefits  under
 the  social  security act, the death benefits payable under this section
 shall be reduced by five per centum of the spouse's share of the  survi-
 vors  insurance  benefits  under  the  social  security act for each ten
 dollars of deceased's average weekly wage in excess of one hundred fifty
 dollars provided that in no case shall such reduction exceed  fifty  per
 centum  of said spouse's share of the survivors insurance benefits under
 the social security act as set forth in table No. II below.
 
                               TABLE No. II
 
              Offset provisions applicable in death benefits
        where there is a surviving spouse and two or more children
 
 AVERAGE WEEKLY WAGE                               PERCENTAGE OF SPOUSE'S
                                                       SHARE OF SURVIVORS
                                                       INSURANCE BENEFITS
 over $150 up to and including $160 ................................... 5
 over $160 up to and including $170 .................................. 10
 over $170 up to and including $180 .................................. 15
 over $180 up to and including $190 .................................. 20
 over $190 up to and including $200 .................................. 25
 over $200 up to and including $210 .................................. 30
 over $210 up to and including $220 .................................. 35
 over $220 up to and including $230 .................................. 40
 over $230 up to and including $240 .................................. 45
 over $240 up to and including $250 .................................. 50
 over $250 ........................................................... 50
   2-b. If there be a surviving spouse of an employee of a private volun-
 tary hospital killed in a World Trade Center rescue, who passed a  phys-
 ical  examination  upon  employment  as  a  rescue worker that failed to
 reveal evidence of a condition that was the proximate  cause  of  death,
 and  a surviving child under the age of eighteen years, or under the age
 of twenty-three years if enrolled and attending as a  full-time  student
 in  an  accredited educational institution and such enrollment and full-
 time attendance is certified by such institution, or a  surviving  child
 of  any age dependent blind or physically disabled, to such spouse forty
 per centum of the average wages of the  deceased  [during  widowhood  or
 widowerhood,  with two years' compensation in one sum, upon remarriage];
 A. 5788                             6
 
 and thirty-five per centum of such wages to such child under the age  of
 eighteen  years,  or under the age of twenty-three years if enrolled and
 attending as a full-time student in an accredited  educational  institu-
 tion  and  such enrollment and full-time attendance is certified by such
 institution, or a surviving child of any age dependent  blind  or  phys-
 ically  disabled;  in the case of the subsequent death of such surviving
 spouse the surviving child shall have his or her compensation  increased
 to  seventy-five  per centum of such wages and the same shall be payable
 so long as he or she is under the age of eighteen years,  or  under  the
 age  of  twenty-three  years  if  enrolled  and attending as a full-time
 student in an accredited educational institution and such enrollment and
 full-time attendance is certified by such institution,  or  a  surviving
 child  of any age dependent blind or physically disabled; upon statutory
 termination of compensation payable to such child, the  compensation  of
 the  surviving  spouse  shall be increased to seventy-five per centum of
 such wages [with two years' compensation, at such rate, in one sum, upon
 remarriage. Upon remarriage of  such  surviving  spouse,  the  surviving
 child  shall  continue to receive thirty-five per centum of such wages].
 Where such death occurs, and the spouse is receiving survivors insurance
 benefits under the social security act, the death benefit payable  under
 this  section  shall be reduced by five per centum of the spouse's share
 of the survivors insurance benefits under the social  security  act  for
 each  ten  dollars  of  deceased's  average weekly wage in excess of one
 hundred dollars; provided that in no case shall  such  reduction  exceed
 fifty per centum of such spouse's share of the survivors insurance bene-
 fits under the social security act as set forth in table No. I in subdi-
 vision  one-c  of  this  section.  If  there be a surviving spouse of an
 employee of a private voluntary hospital killed in a World Trade  Center
 rescue,  who  passed  a physical examination upon employment as a rescue
 worker that failed to reveal evidence of a condition that was the proxi-
 mate cause of death, and two or more surviving children under the age of
 eighteen years, or under the age of twenty-three years if  enrolled  and
 attending  as  a full-time student in an accredited educational institu-
 tion and such enrollment and full-time attendance is certified  by  such
 institution, or a surviving child or children of any age dependent blind
 or  physically  disabled  and a death occurs on or after September elev-
 enth, two thousand one, to such spouse forty per centum of  the  average
 wage  of  the  deceased [during widowhood or widowerhood with two years'
 compensation in one sum upon remarriage]; and thirty-five per centum  of
 such  wages  to  such children under the age of eighteen years, or under
 the age of twenty-three years if enrolled and attending as  a  full-time
 student in an accredited educational institution and such enrollment and
 full-time  attendance  is  certified by such institution, or a surviving
 child or children of any age dependent  blind  or  physically  disabled,
 share and share alike; in case of the subsequent death of such surviving
 spouse the surviving children shall have their compensation increased to
 seventy-five  per  centum  of  such wages and the aggregate sum shall be
 payable, share and share alike, so long as they are  under  the  age  of
 eighteen  years,  or under the age of twenty-three years if enrolled and
 attending as a full-time student in an accredited  educational  institu-
 tion  and  such enrollment and full-time attendance is certified by such
 institution, or a surviving child or children of any age dependent blind
 or physically disabled. [Upon remarriage of such  surviving  spouse,  if
 there  be  two  surviving  children  each shall receive thirty-seven and
 one-half per centum of such wages, and if there are surviving more  than
 two  children under the age of eighteen years, or under the age of twen-
 A. 5788                             7

 ty-three if enrolled and attending as a full-time student in an  accred-
 ited  educational  institution and such enrollment and full-time attend-
 ance is certified by such institution, or a surviving child or  children
 of  any  age  dependant  blind  or physically disabled, seventy-five per
 centum of such wages share and share alike.] Upon statutory  termination
 of  compensation  payable  to  such  children,  the  compensation of the
 surviving spouse shall be increased to seventy-five per centum  of  such
 wages  [with  two  years'  compensation,  at such rate, in one sum, upon
 remarriage]. Where the death occurs on or after September eleventh,  two
 thousand  one,  and the spouse is receiving survivors insurance benefits
 under the social security act, the death  benefits  payable  under  this
 section shall be reduced by five per centum of the spouse's share of the
 survivors  insurance benefits under the social security act for each ten
 dollars of deceased's average weekly wage in excess of one hundred fifty
 dollars; provided that in no case shall such reduction exceed fifty  per
 centum  of said spouse's share of the survivors insurance benefits under
 the social security act as set forth in  table  No.  II  in  subdivision
 two-a of this section.
   2-C. FOR THE PURPOSES OF THE PAYMENT OF BENEFITS TO A SURVIVING SPOUSE
 PURSUANT TO THIS SECTION, THE REMARRIAGE OF SUCH SPOUSE SHALL NOT AFFECT
 HIS OR HER STATUS AS A WIDOW OR WIDOWER FOR PURPOSES OF THIS SECTION.
   §  2.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.